The compatibility of the presumptions of guilt with the protection of the right to a fair trial. Evidentiary consequences

Abstract

The core rationale this essay advocates is that the presumption of guilt is an intricate concept bearing challenging semantics, being all but a finding of fact in criminal adjudication. Furthermore, we argue that, in a legal order compliant with the standards concerning the European protection of human rights – the right to a fair trial –, presumption(s) of guilt could exist only in the pattern of a substantive criminal law norm entailing legal consequences attached to certain unproved qualified evidentiary fact, in respects with any essential features (elements) of the offence charged, either actus reus, mens rea, culpability, or undue conduct, as the case may be. The lines of argument provided by the approach hereunder – which compound elements of jurisprudence, human rights, evidence law and criminal procedure –, instead of the classic one rooted in the civil procedure scholarship, underpin an innovative internal taxonomy, which distinguish between (legal) “presumptions of fact” and (legal) “presumptions of law”, while casting some light regarding the meaning of such expressions under the influential case-law of the European Court of Human Rights.
Otherwise, should one embrace the classic blurry terminological label of the so called “judiciary presumptions”, the pitfall to fall into is unavoidable, hence, instead of building up a comprehensible theory of presumptions in the criminal trial, the concept will fall apart, being rather difficult to understand the reasons to consider, as species of the same category, an inductive inference of the trial jurisdiction based on circumstantial evidence – “judiciary presumptions” – along with a legal norm.
Last but not least, in terms of evidentiary consequences, although the accusation is discharged of the evidential burden in respect of the qualified evidentiary fact, under the legal norm to set forth the presumption, we consider that presumption(s) of guilt never shift the persuasive burden of proof (substantive burden of proof) during the whole course of the trial, as, in the criminal adjudication, the latter is always allocated to the accusation and it operates only at the end of the trial. Notwithstanding the foregoing, in the absence of compelling contrary evidence, the unrebutted presumption of guilt enables the trial jurisdiction to apply that legal consequence by virtue of the statutory provision which establishes it.